Экзамен зачет учебный год 2023 / Dickerman, Land Registration in Africa

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upon graduation because they tend to enter school later than other children, have problems catching up, and do not fare well in the hierarchical grading system; they therefore provide few returns to their parents' investment.

Mkangi explains the continuing emphasis on land reform as the desire of "external forces to break down pre-capitalist attitudes and social institutions and replace them with the ideas of incentives of the market." Since most people have not been able to produce even enough food for their subsistence, Mkangi considers the reform a failure that has only served to perpetuate discontent and social disintegration.

The most recent attempt to analyze the results of the land reform is a paper presented by Okoth-Ogendo at a workshop on land policy in 1982. In it he discusses some of the unlooked-for and undesirable repercussions of the redistribution of land and land rights.

K35 Okoth-Ogendo, H.W.O. "The Perils of Land Tenure Reform." Paper presented at the Workshop on Land Policy and Agricultural Countries, Gaborone, Botswana, 14-15 February

1982.

Okoth-Ogendo makes generalizations regarding the impact of land reform "on the political, social, and economic organization of society." Evidence to

support his conclusions is drawn from fieldwork done in Kisii and South Nyanza Districts in Nyanza Province from 1972 to 1974. The author contends that any benefits from land reform are offset by the redistribution of political power, the emergence of economic disparities and a disequilibrium of socio-cultural institutions. Land reform initially has a positive impact on agricultural planning, but follow-up extension, credit, and assistance have failed to appear.

Only 2 percent of the registered holders in Kisii and South Nyanza Districts were able to secure credit from 1970 to 1973. Other credit pre-requisites prevented small farmers from obtaining loans and 80 percent of those who borrowed money during that period used it for nonagricultural purposes.

The author argues that it is the "social, political, and economic functions of tenure arrangements and not their structure per se that will determine decision making processes in land use." As a consequence, farmers continue to perceive land rights as exclusive and estimate land values subjectively. The Land Control Boards, which are mostly composed of local residents, have tended to settle land disputes in favor of social justice over economic realities--a trend which inhibits the growth of a viable land market. Confusion is created when higher courts settle disputes on the basis of legal standards only to have their decisions tempered by the land boards. Changing the land tenure structure alone is insufficient to induce improvements in agricultural practices, in part because small farmers lack the capital to make changes in their practices.

Land redistribution was an effect, not a goal, of land tenure reform that arose because of confusion with the legal structure of reform, problems with implementation, and a lack of understanding of the nature of customary rights. Women and children lost potential and de facto rights in the registration pro- cess. Less than 5 percent of the total registered proprietors have been women, and this has weakened the family as the basic unit of production. Subtle land redistribution has occurred in favor of farmers with larger holdings who can

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afford to purchase plots from smaller farmers in need of quick cash. The redistribution has also affected a change in political power by allowing the emergence of a rural elite.

A second land registration program, known as the "Million-Acre Scheme" and implemented at the time of independence, was designed to transfer the European-owned large-scale farms in the White Highlands to African farmers. The plan, under which both largeand small-scale

land from European farmers. Intended on the one hand to allow Euro- pean farmers to sell their land at high prices and, on the other, to help alleviate the problem of African landlessness, the scheme called for the farms to be registered as individual freehold and allocated to African farmers. In some cases the original farms were subdivided into smaller units, but in other cases they remained as large holdings.

Only one study to date has focused on this land reform program separately. The findings are presented in the following book:

K36 Leo, Christopher. Land and Class in Kenya. Toronto: Uni- versity of Toronto Press, 1984.

Leo, a political scientist by training, began his research in 1971, collecting data and conducting interviews in two units of the Million-Acre Scheme in Nyandarua District. The research continued over a ten-year period, and although he did not attempt to measure or assess the effects of titling and registration specifically, his findings are instructive for considering the relationship between farm size and productivity.

The design for the transfer of European-owned large-scale farms in the Highlands to African smallholders involved the subdivision of lands originally held under 999-year leases into smaller units held in freehold. The scheme, in which both largeand small-scale African farmers participate, redistributed some 1,000,000 acres of underdeveloped land purchased from European farmers. Intended in part to ease landlessness among Africans, the project failed to make a significant impact on the problem. Smallholder farmers, settled in highdensity areas that were often on more marginal lands, were saddled with substantial debts and inadequate services. Large-scale farmers, in contrast, of whom greater resources were required at the outset, received better land in lowdensity settlement areas. Many of the farms failed to achieve the levels of production planners had expected, and, particularly among the smallholder farmers, defaulting on loan repayments was not uncommon. But overall production levels remained as high, if not higher, than they had been before the program, and the high-density settlements were found to be more productive than the lowdensity ones, a result that at least in part may have been due to the increased population working the land.

[See also Leo's "Who Benefitted from the Million Acre Scheme? Towards a Class Analysis of Kenya's Transition to Independence," Canadian Journal of African Studies 15 (1981): 201-222.]

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A third and very different program of registration was that which created group ranches for the Masai beginning in the mid-1960s. In order to protect their lands against encroachment by non-Masai, Masai pastoralists were persuaded to agree to the establishment of ranches on which freehold title would be held on a group rather than an individual basis. The government, for its part, hoped that by granting freehold title for a defined area of range to reduce and control the number of cattle on the range and the amount of territory the Masai considered open range.

K37 Davis, Robert K. "Some Issues in the Evolution, Organi- zation and Operation of Group Ranches in Kenya." East African Journal of Rural Development 4 (1971): 22-33.

Davis anticipates some of the implications, issues, and consequences of land tenure reform in the pastoral areas of Kenya just prior to the implementation of a scheme to establish group ranches over 5,105,000 hectares of land. Group ranches are legally constituted as a corporate body with the power to hold property and acquire debts. Moreover, individuals continue as individuals to hold residence rights but grazing, tillage, and water rights are controlled by the group committee. The authority structure of the ranches includes a slate of group representatives and an elected group committee which has a managerial role. In establishing the first ranches in Kaputiei and Kajiado Districts, attempts will be made to incorporate both wet and dry rangelands in each ranch and traditional affiliations will be upheld.

Group ranches are being established to achieve economies of scale in terms of the provision of water, sale of livestock, grazing and health practices; to create an environment more suitable to commercial production; and to promote better rangeland conservation through the incentives provided by individualized tenure. Davis discusses the distributional consequences that might be encountered in a system where ownership is different than use. A major concern is assuring that the most successful ranchers can acquire the assets necessary to achieve their productive potential.

While Davis is concerned to lay out some of the theoretical is-sues and possible consequences of the establishment of group ranches, evaluations of the actual operations of the group ranch schemes have focused on the ways in which customary authority and relationships have been ignored and problems for the projects have thereby been created. The realities of the process of demarcating both individual and group ranches among a particular group of Masai, the Kaputiei Masai, is the subject of the following paper.

K38 Hedlund, Hans G.B. "The Impact of Group Ranches on a

Pastoral Society." Institute for Development Studies,

University of Nairobi, Staff Paper, no. 100. Nairobi,

June 1971.

In response to a drought in 1960/61, in which a significant proportion of their cattle herds died, the Kaputiei section of the Masai began to register ranches on an individual basis. By 1965, 56,000 acres out of 806,000 had been

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divided among 28 families. Because there was in fact no legal basis for individual registration of ranches and because there was insufficient land to provide each family with a ranch of adequate size, the program was soon replaced by a scheme to constitute and register group ranches. Two factors contributed to local willingness to participate in the group ranches project: the commercial success of a number of the individual ranches, and fear of loss of land through sales to outsiders (especially the Kikuyu). Many Kaputiei Masai also believed that registration itself would automatically bring development as well as prevent land loss to expanding nearby game reserves.

members.

owners in the first place and it may very well be that many of these charac- teristics (better education, wealth) were already present. At the very least, however, access to credit and other benefits at an early stage of the individ- ual ranch project enabled them to improve their economic standing.

Within the group ranches, traditional offices and positions of leadership exercise little attraction and their holders play little role in the activities of the ranch. Positions of leadership within the group ranch structure, on the other hand, are highly prized. At the same time, however, Hedlund notes a general tendency toward individualization of effort among the more progressive members and increased participation in the cash economy. Because of the exam- ple of the individual ranches and their commercial success, many Kaputiei Masai regard economic success as a product of individual ownership of land. The group ranches, Hedlund believes, are likely to remain faction-ridden for a long time to come because of both the haphazard way in which they were constituted and the failure in provision of technical services soon after their establishment.

Hedlund's findings are supported by research by Halderman, who also looked at ranches in the Kaputiei area. Like Hedlund, Halderman finds that demarcation of group ranches often ignored customary

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arrangements and that the new ranches fared poorly during times of drought.

K39 Halderman, John M. "An Analysis of Continued Semi-Nomadism on the Kaputiei Masai Group Ranches: Sociological and Ecological Factors." Institute for Development Studies, University of Nairobi, Discussion Paper, no. 152. Nairobi, 1972.

Halderman's analysis of group ranch,development schemes is based on research in South Kaputiei, an area containing six individual ranches and six group ranches. In his research Halderman found that the group ranches were only successful until the first drought, when the need for self-preservation required the Masai to move their herds to neighboring grazing lands via traditional migration routes. Since most ranches were not provided with resource assistance such as water and off-season forage, acquisition of title alone was not sufficient incentive to change traditional patterns based on reciprocity and the communal use of land, forage, and natural water supplies.

Group ranches were not demarcated to correspond to traditional migration patterns or social organizations. The demarcation of ranch boundaries by the development committee was often impractical. "While natural boundaries such as

to identify the proper social groups that would give the ranchers a sense of cohesion. Most Masai wanted communal arrangements because of their flexibility, but some Masai were eager to acquire individual titles because of anxiety over the future ownership of their traditional territories, and in some areas, exposure to European successes with farming technologies had fostered the desire to obtain titles for credit. The Poka Ranch, established in 1964/65, was uniquely successful because development assistance was immediately available, and the ranch generally maintained sufficient forage and rainfall. However, even the most successful farmers were forced to move their cattle beyond the boundaries during severe drought. Halderman's research results demonstrate a significant difference between the success of ranches mostly due to variation in the availability of wet and dry season grazing, the amount of development assistance, ecological variability, and the land's ability to sustain rotational grazing. The impact of these differences is seen in such variables as the percentage of cattle watered daily, the regularity of dipping, the per-

centage who are engaged in cultivation, and the percentage who sell milk daily. An increase in individual ranches motivated the government to promote group

ranches as a way to protect the interests of the majority and to develop all suitable land. The government also realized the need to establish economic units if rotational grazing schemes, stock control, and protection against erratic rainfall were to be possible. Halderman sees group ranches as a reason-able solution to rangeland problems if the obstacles of ecological variance and erratic rainfall can be overcome.

Other evaluations of the group ranches have looked at their day-to- day operations and found difficulties in their design and

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operating procedures. The following articles by Helland and Galaty describe some of these problems.

K40 Helland, J. "Group Ranch Development among the Masai in

Kenya." In East African Pastoralism: Anthropological

Perspectives and Development Needs, pp. 93-115. Addis

Ababa: International Livestock Centre for Africa, 1977.

The underlying objectives of group ranch development in Kenya were to increase commercial production, to regulate stocking rates for maximum produc- tivity, to conserve natural resources, 'and to provide an adequate standard of living. However, the ways in which the group ranches were demarcated raises serious doubts as to their economic, ecological, and social viability. First they were not formulated on the basis of the enkutoto or other traditional units of organization. Second, the ranches raise equity questions because of their variable sizes--particularly in regions of consistent productivity.

Helland gives a fairly detailed description of the demarcation and registration procedures involved in establishing group ranches and briefly examines problems encountered because of a lack of understanding of the social and eco- nomic complexities of Masai society. For instance, while the Masai are being encouraged to adopt a more agricultural diet, thereby reducing the need for large herds, the capacity of the group ranches to support the population is diminishing

in herd sizes. Minimum stock quotas have been issued to all members, but the wealthier pastoralists have resisted culling their herds. The Range Management Committees, developed to oversee such problems, are inhibited by a lack of funds, information, organization, and enforcement capabilities. The situation is further complicated by the interests in maintaining reciprocal relationships in the use of grazing land. Some development loans have been issued, but circumstances have discouraged further investments.

Ranches set up in the Samburu area have encountered some of these problems because of their small size and management bias. In the future, the ranches will be threatened with the overpopulation of people and cattle if current controls are not made more effective. Helland notes that planners must under-stand how the pastoral social and economic system works, how the project will affect that system, and how it affects project activities before such problems can be resolved.

K41 Galaty, John. "The Masai Group-Ranch: Politics and De- velopment in an African Pastoral Society." In When Nomads

Settle, edited by P.C. Salzman, pp. 157-172. New York:

Praeger, 1980.

While both the Masai and government planners sought the establishment of group ranches, their motivations for doing so were not identical. The planners hoped to encourage a radical transformation of rangeland economics by encour- aging commercialization, reducing stock numbers and limiting grazing, all of which were dependent on well-defined ranches and impermeable boundaries. Even though overstocking and overgrazing were the results of colonial policies which usurped the best grazing lands and prevented the Masai from participation in

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the livestock market, the Masai practices were considered traditional and judged as irrational. In contrast, the group ranches provided security for the Masai and protection of their traditional pasture lands from encroachment by cultivators, quick sales, and the further adjudication of individual ranches. The Masai were particularly interested in group registration after a series of droughts made them realize that pastoralism with its new constraints could not be counted on to provide even a subsistence level of existence. Group ranches were an attempt to protect the rights of ,the majority of the Masai from the consequences of an increasing perception of the value of natural resources such as wildlife and prime grazing lands. An effort was made to register all persons of Masai heritage including those not in the area.

The ranches were intended to be more economically viable in size than individual ranches. They have not achieved the economic goals set out by the planners but have provided an organizational mechanism for future improvements. The ranches have a political organization but no social basis and continue to be dominated by traditional relationships which determine control and yet may give rise to disputes. One constraint to their development is the credit institutions' resistance to loaning to group ranches because bad debts are difficult to collect as no single person claims responsibility.

A legal perspective on the problems of the Masai group ranches is provided in the following article by Simon Coldham:

K42 Coldham, Simon. "The Registration of Group Ranches among the Masai of Kenya: Some Legal Problems." Journal of Le- gal Pluralism and Unofficial Law 20 (1982): 1-16.

The influx of the Kikuyu into the best pasture lands and the proliferation of individual ranches combined to encourage the Masai to seek tenure modifications through group ranches. The government supported their establishment because they were seen as a way to achieve economies of scale in development aid, were thought to be a prerequisite for credit, and were considered one way to prevent the Kikuyu from taking over more pasture land. The Land Act of 1968 contained complex legal provisions for creating group ranches, but certain legal questions were left unresolved. For instance, registries list only the names of adult married males instead of all those entitled to membership under customary law-- meaning that, in the future, it could be difficult to determine membership rights. Similarly, problems have arisen with deciding the rights of the nonMasai who live in the area. Some long-standing residents of the area who are non-Masai have been denied membership, while at the same time some Masai continue to invite friends and relatives into the area without regard for the range's limited capacity. Even Masai membership is threatened by ambiguous laws which have the potential for allowing group representatives to band together and oust disfavored members.

Other threats to the success of group ranches are embedded in the ranch structure. The group ranches were established without regard for traditional boundaries, migration routes, or social organizations such as the enkutoto which would have given the group a sense of identity. Instead, ranches were defined by convenient boundaries such as rivers--a situation inevitably leading to disputes. Customary authority structures threaten the viability of the ranches as does their tenuous economic position perpetuated by overstocking

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and a lack of development capital. Even though an individual shares in the ownership of an undivided ranch, these interests are somewhat ill-defined and no compensation is given when a Masai leaves a ranch. Where legislation in Nigeria and Malawi recognized customary powers of land administration, the Kenya act created groups with no traditional legitimacy, foreign administra-

tive procedures, and novel relationships.

Coldham suggests that the ranches would have been more successful if the Masai had been consulted before their implementation and if they were the focus of intensive economic development.

A summary of the difficulties encountered in the design and oper- ation of the ranches is provided in the following paper by Moses Olang, an ecologist formerly with the Range Management Division.

K43 Olang, Moses. "Organizations and Procedures in Group Ranch Development in Kenya." Pastoral Network Paper 13c. London:

Overseas Development Institute, January 1982.

Olang provides a brief overview of the establishment of group ranches from their conception through their development phase. He provides details of group ranch administration, the planning stages in their development, and the participating government organizations.

In many ways, the group ranches did not function as had been expected. Some were handicapped from the beginning by too many members given the productivity level of the ranch. The productivity of ranches was generally not considered during demarcation. Ranches with too many members were denied loans. Traditional beliefs worked against attempts to prevent overstocking, and the problem was exacerbated by the unwillingness of wealthier pastoralists to re-duce their herds. Grazing quotas were designed to regulate herd size and were to be used as a basis for loan distribution, but neither objective was ever achieved. Poorer members could not afford to increase their herds even if their quotas guaranteed that right. Other plans to develop the ranches were often delayed for a lack of funds, because of government bureaucracy, or over-worked personnel.

As part of a wider discussion of development issues facing pastoral peoples in East Africa, Bennett devotes a chapter to the Masai group ranches scheme in Kenya and then compares the experience with projects involving pastoralists elsewhere in the region. This broader perspective enables him to make comparisons with, among other projects, ranch schemes for the Masai in Tanzania.

K44 Bennett, John W. Political Ecology and Development Proiects Affecting Pastoral Peoples in East Africa. LTC Research Paper, no. 80. Madison: Land Tenure Center, Uni- versity of Wisconsin, 1984.

The establishment of group ranches in Kenya was motivated to some extent by concerns with the degradation of the pasture lands but to an greater extent by the need to reduce and control the number of cattle on the range, the desire

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to control the extent of the Masai, and a belief that different tenure arrange- ments would better promote livestock production and commercialization. Earlier attempts at tenure modification had included assigning individual titles to individual herd-owning households, but this project failed as the best tracts of land went to the entrepreneurially inclined who proceeded to exclude others from the range. Group ranches, on the other hand, are thought to promote the rights of the majority.

The new group ranches allow herders to graze their individually owned herds on land to which they maintain certain use rights. When a group of pastoralists decides to incorporate, they apply to the government for assistance. Arrangements are made to transfer titles to the pastoralists once rights to the range area have been assigned. Adjudicating rights in clan controlled areas is easier than in those dominated by individual right holders. Residual colonial rights also complicate transitions to group titles. When the government assigns freehold titles to a corporate group, that group becomes the owner of the land in perpetuity.

The Masai have been anxious to participate in group ranches because they believe their political survival and economic security depends on securing tenure and thereby preventing the encroachment of cultivators. The ranches have had problems because the pastoralists do not confine themselves to their designated areas during water shortages. Periodic droughts have made ranch size a variable in terms of productivity. Until necessary training and sup-plies are provided as well as direction in modifying traditional cultural rules which regulate productivity, the pastoralists will not be contained or operate efficiently. So far group ranches have not been effective in pursuit of growth or conservation policies.

A completely different, technical perspective on the Kenyan land registration program and its implementation is provided in the following discussion of surveying procedures. The author, F.H. Ratzeburg, was Assistant Director of Surveys in Kenya during the 1960s.

K45 Ratzeburg, F.H. "Cadastral Survey and Registration in Kenya." Paper presented at the Seminar on Cadastre at Addis Ababa, 25 November-9 December 1970. New York, UNESCO.

In his discussion of the survey component of the Kenya land registration project, Ratzeburg indirectly demonstrates how technical decisions can have long-term implications for the success of a land registration project. For instance, the decision to use a general boundaries system in the Coast Province of Kenya meant that parcel identification depended on enclosure. As the wooden pegs used to mark the turning points of land parcels rotted away, costly readjudication procedures were required. A registration system should include: (1) a record of the rights and interests in a particular piece of land; (E) standards establishing the extent of the state's guarantee of title; and (3) a map adequately displaying parcel locations. In Kenya, both a general boundaries system, as mandated by the Registered Land Act 1963 in Kenya, and a guaranteed boundaries system as specified under the Registration of Titles Act, co-exist.

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Registration of land and application of western land law concepts have not extinguished customary land law practices and beliefs in Kenya, as many of the studies in this section have shown. Several recent actions by the government appear to reinforce this trend and to be a retreat from the principles of formal statutory property law. Perhaps the most significant is the enactment of the Magistrate's Jurisdiction (Amendment) Act of 1981, which is a recognition of the persistence of customary rights and usages and of the need to provide a forum in which ordinary individuals might present their claims. This act confers on panels of elders the jurisdiction over certain kinds of land disputes (as well as over other matters of customary law). The implications of this act and a later amendment with re-

gard to Kenyan land law are far-reaching and are the subject of the following two papers.

K46 Kuria, Gibson Kamau. "Need to Rethink the Role of Elders under Magistrate's Jurisdiction (Amendment) Act 1981 as Amended by the Statute Law (Miscellaneous) (No. E) Act 1984 (Act No. 19)--Blending Western and Traditional Property Law Concepts and Institutions." N.p., January 1986.

Kuria, a lecturer in law at the University of Nairobi, is of the opinion that the 1981 act is a much-needed response to the persistence of customary law practices and to the demand that customary claims be recognized. (He notes that in 1981 there was no court with customary law as its specialist jurisdiction, although there had been such courts during the colonial period.) The act provides for the designation of panels of elders to hear and decide upon land claims arising from the following issues: beneficial ownership of land, division of land and boundaries (including land held in common), occupation and use rights, and trespassing.

Despite registration and the imposition of a western system of property in much of Kenya, claims to land based on customary rights have continued to be pressed in registered areas. These claims are principally of three kinds: (1) cases in which a claim is lodged against the individual designated on the land register as the sole owner but who under customary law held the land in trust for the family; (E) cases in which occupiers of land have invoked the western concept of adverse possession for more than 12 years in order to be registered as owners of the land; and (3) cases in which transfers made under customary law may be declared null and void because the parties have failed to